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DEFENDANT SHOULD NOT HAVE BEEN ASSESSED POINTS UNDER RISK FACTOR 7, DEFENDANT HAD LONG-TERM NON-SEXUAL RELATIONSHIPS WITH THE VICTIMS BEFORE THE ABUSE STARTED, DEFENDANT DID NOT ESTABLISH THE RELATIONSHIPS FOR THE PRIMARY PURPOSE OF VICTIMIZATION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissenting opinion, determined defendant should not have been assessed points under risk factor 7. Risk factor 7 applies when a defendant establishes a relationship with a victim for the primary purpose of victimization. Here the victims were the children of defendant’s long-time friends. Defendant had long-term non-sexual relationships with the children before the abuse began:

The People bore the burden of establishing by clear and convincing evidence that defendant promoted his relationship with one or more of the victims for the primary purpose of sexually abusing them (see Correction Law § 168-n [3]…). That burden was not met here. The record reflects that he had long-term, pre-existing relationships with the children, continued those relationships in the role of a close family friend who regularly spent substantial amounts of time with the children and their families, and did not begin to offend against them until the eldest child was approximately 11 years old … . Therefore, the evidence in this record does not support Supreme Court’s determination that defendant “promoted” his relationships with these children for purposes of victimization … , as opposed to redirecting his longstanding close and involved relationships with them in such a way as to allow for sexual abuse. People v Cook, 2017 NY Slip Op 02468, CtApp 3-30-17

 

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‘RELIABLE HEARSAY’ IN A PRESENTENCE INVESTIGATION (PSI) REPORT IS A SUFFICIENT BASIS FOR A FINDING DEFENDANT USED VIOLENCE IN THE COMMISSION OF A SEX OFFENSE; LEVEL TWO RISK ASSESSMENT UPHELD (CT APP).
CLAIMANT’S SEXUAL ABUSE CONVICTION WAS VACATED AFTER THE ALLEGED VICTIM RECANTED; CLAIMANT BROUGHT AN ACTION AGAINST THE STATE PURSUANT TO COURT OF CLAIMS ACT SECTION 8-B FOR UNJUST CONVICTION AND IMPRISONMENT; THE COURT OF CLAIMS PROPERLY FOUND CLAIMANT DID NOT PROVE HIS INNOCENCE BY CLEAR AND CONVINCING EVIDENCE (CT APP).
APPELLATE DIVISION WRONGLY EXTENDED COMMON INTEREST ATTORNEY CLIENT PRIVILEGE TO MERGER NEGOTIATIONS WHEN THERE WAS NO PENDING LITIGATION.
Defendant Implicitly and Explicitly Waived His Right to Be Present During Side-Bar Conferences
ALTHOUGH DEFENDANT OBJECTED TO THE SANDOVAL RULING AT TRIAL, THE OBJECTION WAS NOT ON THE PRECISE GROUND RAISED ON APPEAL, THE ISSUE WAS THEREFORE NOT PRESERVED.
VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP).
THE SEX TRAFFICKING STATUTE HAS TWO LINKED BUT DISTINCT ELEMENTS WHICH WERE PROPERLY EXPLAINED TO THE JURY IN THE INITIAL JURY INSTRUCTIONS; HOWEVER THE SUPPLEMENTAL INSTRUCTION IN RESPONSE TO A JURY NOTE ERRONEOUSLY COLLAPSED THE STATUTE TO A SINGLE ELEMENT; NEW TRIAL ORDERED ON THE SEX TRAFFICKING COUNTS (CT APP).

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